50 F. 640 -

50 F1d 640

Case Text

hDERAL Ul'ORTER,

vol 50.

misea within the 90-day rule referred to, it follows that the cause would be tried upon the general issue, which, under the statute and the rule of court as well, would involve the single issue as to the value of the , Holding the view that if the landowners are plaintiffs they are not within the pro.visions of the removal act of 1887, and if they are defendants that the rUle of the state court applies, and that the landowner8 are therefore late in point of time, itiis not necessary to consider the other ground raised by the motion, nor the further question which might be raised as to whether class of cases is within the removal provisions of the act of 1887. The case should be remanded upon the grounda considered. and it is so ordered.

An &otion over whicQ the state and federal courts have concurrent jnrladicttOD was instituted in the state court, and, after answer, at the instance of plaintiff., was dismissed without prejudice; and defendants, with leave, amended their SQas to become plaintiffll, and the original plabitiffs became defendants, IJt respect to the affirmative allegations thereof. Held, that the pendency of such ,proceeding in the state court was no bar to the prosecution of a bill in a federal court by the oriMinal plaintiffs on the cause of action set forth in their orilrinal bilL

InEquity. Bill by E. S. Coe and David Pingree, trustees, against Walter Aiken, the Boston, Concord & Montreal Railway Company, the¥ount Washington Railway Company, and tbe Concord & Montreal (Jompany, to determine certain rights with reference to corporations, land, ,and otqer property, and for specific performance and aGo counting. Heard ana plea to the jurisdiction. Overruled. Hemry Heywood; Oliver E. Branch, Harry Sargemt,and Everett Fktche,\ for plaintiffs. ' . . . . E. B. S. Sa,nb(Yf1l and Prank S. Streeter, for defendants.
ALDRICH, District Judge. Itappears that these plaintiffs commenCetl. proceedings in the equity court of the state of New Hampshire on the 3d day of October, 1890, making the present defendants, except the Con· cord &; Moutreal Railroad, par'ties defendant. It also appears that. on the 15th day of' July, .1891, and after the defendants had filed their answers in the state courts, the plaintiffs g-ave notice that they should, on the 31st of July, 1891, ask leave to dismiss their bill. Thereu!>"' on the defendants, on the 21st day of July, gave notice that they should, on the same 31st day of July, apply for the orders and injunotions 'mentioned in their answers. It further appears that on the 31st da}' of July, lind before any hearing upon the merits, the parties being presert' in p'erson and by counsel, it was ordered by the state couti thaC

COE

'V.

AIKEN;

641

the plaintiffs have leave, on payment of the defendants' costs, to withdraw their bill, without prejudice, beyond such results and effects as such withdrawal might invohre, and, upon such leave, the costs, taxed, were paid by the plaintiffs. And thereafter, on the same day and in the same court, the defendants had leave to become plaintiffs, with their answers as an affirmative bill, and to amend so far as necessary for that purpose; and the plaintiffs, who had become defendants as regards the matter set out in the answers, which by such amendment had become a bill, were ordered to make answer thereto. The Concord & Montreal Railroad was admitted as party plaintiff, and upon the original petition. contained in the original answers, Coe and Pingree, the original plaintiffs. were enjoined as to the affirmative matter set forth in such answers to their bill, which answers had become a bill in equity under the circumstances stated; and the proceeding involved in such amendment is still pending in the state court. On the 8th day of August, 1891, and subsequent to all the foregoing, the plaintiffs, who are nonresidents, brought their proceeding on the equity side of this court, setting forth matters originally cognizable therein, and involving and perhaps precisely, the same causes of action set out in their earlier bill, and amendments thereto, filed in the state court, and praying forsiniilar relief. Upon proper pleadings, the question is presented as to whether such proceeding in the state court is a bar to or should abate the plaintiff8' right to prosecute their bill for relief in this court. It is well settled that a plaintiff may become nonsuit in an action at law, or, by leave and upon payment of costs, dismiss his suit in equity at any time, at least, before hearing upon the merits, and that such nonsuit or dismissal is not a bar to subsequent proceedings involving the same subjectmatter. The authorities holding that, under the provisions of the federal acts,a plaintiff who, having instituted his suit ina state court, has been· subjected to across action, or, by amendment of his opponent's answer, has become a defendant, is not entitled to remove his suit, on the ground that he must abide the forum originally selected, do not apply to a suit directly brought in the federal courts, involving matter over which such courts have original jurisdiction. While, under the act of 1888, a plaintiff who has selected the state court cannot, under such act of congress, remove his suit direct to the federal court, the fact that a plaintiff has at some former time brought his suit in some one of the state courts, and, upon leave, dismissed his proceeding, upon payment of costs, is not a bar to, and will not abate, a suit upon the same causes of action subsequently brought in the federal court, involving matter over which such court has primary and original jurisdiction. The plaintiffs are nonresidents,and this court has jurisdiction, concurrent with the state courts, over the parties and the subject-matter, and the plaintiffs might have brought their proceeding in this court originally, and, before going to the merits. dismissed the same, and commenced over again in.the same court, or in the state court of New Hampshire,or any other court baving jurisdiction of the parties and the controversy, and V.50F.no.8-41

642t

FEDERAl'- REPORTER,

vol. 50.

suohloriginal pEllidency bUhis court would not, as I understand it. operate ·as'·. bar or in &batement; and it follows unquei!tionabIYI<8.S well, thlit 'priOr pendenoy iIi a',gtate court does not deprive the federal court ofits;power to administer justice in controversies within its jurisdic-; tiori: ' . ' 1 " f J( · . Itis;contellded, however,by the defendants, that the suit is still pendingiiuithe'stat-ecourt updn:an'amendmentallowing them to make their answersan'aftirmativebiiU,.and tbereforeipending for general relief and all otherpurpose8,and that .these phintiffs, who' are defendants to the amendedamsw.er.s. were original',plaintiffs, and as such selected their foruptl/lrld'm'ust there abide, and that their suit, brought in this court, . ' , , should be ,dismissed. ,: ; argumemts :bearing.-upon this phase of the qUestion have. been presented' ;,mlimarked ability" and I am free, to say that strong reasons bavebeeh i 8uggested from the diffe'rent standpoints\, but my conclusion is" that! ithe' pendency in the state court, ander·the' circumstances disclosed j does not:qperate as 'a bar to the plaintiffs1 right to seek relief in this boun.: rI'here isalithority for holdfng (Latham; v. Ohafee, 7 Fed. other eases) that, if the plaintiffs'suit was fully pending in "the ,;statecourt upon their own bill, :'such penqericy would neither bar nor abate a subsequent suit in their own behalf in the federal court. '.E'hisi doctriile it bas been is based) upon the idea that in this re,the state courts are foreign. It may be that this broad rule should be ',modified, in view of the provision of the statute making. the federal jurisdiction' as, to certain matters ;concurrentwitb that, of the courts of the. sev.eraLstates. However that i may. ,be; in my judgment it is quite clear that these defendarits;who,after notice of a 'motion for leave to dismiss: in the state court, filed their amendment, either for the single purpoSe of) relief upo£,! the affirmative nlatter set forth in their answers, or faD the broader purpose of c&ntrolliQg the forum thereby, are notin apositiQ!i1'Ao.setup such pendency,' either in abatement Of in bar of the proceedingl here in behalfof the plaintiffs, Jor relief upon matter set forth in, their ,bm. ' ' I assume that the purpose of the: wise arid liberal amendment practice in the sta'tie (l0urtsof New Hampshire in respect to answers in equity is,tG! llovoid circuity of'process. and for convenience and speed in administeriilg justice in suchcQurts"to the end that a defendant may have ,relief in the same cproceeding upon the original and affirmative matter only contained in hisanswerwbeo. the plaintiff fails to prosecute his bill; and that the rule of practice so-limited does not enibrace defendants'aHegations of dilnial to' the ,original affirmative allegations of plaintiffs;:which it· is ungerstood they may dismiss. And I assume also that it isnobdntendeditliat such practice, so limited, shall operate to hold jurisdiction over matter otherwise cognizable in federal courts, or that a partyshould'use>the privilege for the purpose 'of cniatingsituations designed to control the rights of his adversary in respect to a forum. Eut, Hit were otherwise,'under such circumstances, effect could' not be given too. rule or practice in the state court calculated to operate as an

HEDGES". SEIBERT CYLINDER OIL CUP CO.

643

abridgmerlt'oC; the rights of parties in respect to the jurisdiction of this court, nor to the act of a party calculated, through the use of such rule or praetice,to compass a. result which should impair the rights of his opponent ili equity proceedings herein. Hyde v. Stone, 20 How. 170. The facts alleged in the defendants' plea, and disclosed by the record, furnished no legal bar to this proceeding. Moreover the plea is not founded in equity. It should therefore be adjudged insufficient, and the defimdants required to answer, and it isoruered accordingly.

Wliete a judgment or decree is several persons jointly, one of them,C&Dnot appeal alone, without a proper summons and severance·

. Appeal from the Circuit Court of the United States for the District of New Jereey. In Equity. Suit by the Seibert Cylinder Oil Cup Company against Manufacturing Company, Charles Couse, presithe Newark dent, and William H. Hedges, secretary and treasurer, thereof, for infringement of .letters patent No. 188,243, for an invention relating to lubricators used in steam engines. There was judgment for plaintiff, (35 Fed. Rep. 509,) and defendant Hedges alone appeals. Motion to dismiss appeal. Appeal dismissed. Lawrence E. Sext<m, for the motion. J. a. Clayton, opposed. Before ACHESON, Circuit Judge, and BUTLER, District Judge. ACHESON, Circuit Judge. Undoubtedly the final decree in the court below in this case is a joint decree against the three defendants, the Newark Lubrioator Manufacturing Company, Charles Couse., and William H. Hedges. These parties were jointly interested in the suit, and the decree affects them all jointly. Yet only one of them, William H. Hedges, has appealed from th.e decree. His appeal was taken without previous summons and severance, or any equivalent action, and no cause has been shown for the nonjoinder of his codefendants in the appeal. Now, it has been held repeatedly by the supreme court, and is the settled rule in that court, that all the parties against whom a joint judgment or decree is rendered must unite in the writ of error or appeal, or it will be been a summons and severance, or some dismissed, unless there is shown for the nonjoinder. Maslike proceeding, or sufficient terson v. Herndon, .10 Wall. 416; Feibelmanv. Packard, 108 U. S. 15, 1 Ct. Rep. 138; EstilJ.v. Trabue, 128 U. S. 225, 9 Sup. Ct. Rep. 58. These decisions are conclnsive here, and the appeal of William H.